[2018] KEHC 9603 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

FAMILY DIVISION

CIVIL APPEAL 35 OF 2016

KIBIBI MWAMADI

RUKIA SALIMU MWACHARO

HADIJA SALIMU...................................................................APPELLANTS

VERSUS

GOGA ABDALLA MASEMO...............................................RESPONDENT

JUDGEMENT

(An Appeal from the entire Ruling and Order of Hon. Said Hamisi Bedzenga, Kadhi delivered on 29. 8.165 in Kwale Kadhi Succession Cause No. 88 of 2015)

1. The Respondent Goga Abdalla Masemo filed Succession Petition No. 88 of 2015 dated 11. 3.15 against the Appellants Kibibi Mwamadi, Rukia Salimu Mwacharo and Hadija Salimu in respect of the estate of Mama Hasina Mohamed, Fatuma Mwinyi Mwakulema and Amina Salimu Mwacharo. The date of death is not indicated in the petition. The parties are all grandchildren of the Deceased. The deceased left a property known as Kwale/Ngomeni/1104. The Respondent sought distribution and transfer of the property to the survivors and a vesting order.

2. The Appellants filed a Notice of Preliminary Objection dated 14. 4.15 objecting to the jurisdiction of the Kadhi’s Court to entertain the matter. They argued that the Petition does not involve inheritance but the dispute is over the transaction of sale of the Property over which the Kadhi’s Court lacked jurisdiction.

3. In the impugned Ruling, the Hon. Principal Kadhi dismissed the preliminary objection. The Hon. Principal Kadhi and found that the question as to whether the estate of the Deceased was properly distributed amongst his heirs is a question of inheritance that falls within the jurisdiction of the Kadhi’s Court as set out in Article 170(5) of the Constitution and Section 5 of the Kadhis Court Act.

4. The Appellants were aggrieved by the decision of the Hon. Principal Kadhi and preferred the Appeal herein. The grounds of appeal are reproduced hereunder:

1. THATthe Honourable Kadhi erred in law and in fact by failing to consider that the issue of succession in the estate of the deceased, HASINA KIBIBI aka MAMA HASINA MOHAMED was determined in High Court Succession Cause No. 444 of 2011 and the Appellants herein were duly issued with the Letters of Grant of Administration Intestate on the 24th of September, 2012 and later issued with a Certificate of Confirmation of a Grant on 30th of October, 2015.

2. THATthe Honourable Kadhi erred in Law and in fact by failing to consider that Kadhi's Court Succession Case No. 88 of 2015 filed by the Respondent whose only issue for determination is the issue of succession in the estate of the deceased HASINA KIBIBI HAMISI aka MAMA HASINA MOHAMED is Res Judicata hence dismissing the Appellants' Preliminary Objection to the Respondent's Petition and to the Respondent's Application.

3. THATthe Honourable Kadhi erred in law and in fact by allowing the Respondent's Application dated 25th April, 2016 in its entirety and disregarded the fact that the Respondent failed to adduce evidence to prove the allegations contained in the Affidavit in Support of the said Application.

4. THATthe Honourable Kadhi misdirected himself by failing to consider that the Respondent did not have the locus standi to bring the Application dated 25th April, 2016 by dint of the fact that he is not a dependant, an heir nor is he a beneficiary of the estate of HASINA KIBIBI HAMISI a.k.a. MAMA HASINA MOHAMED.

5. THATthe Honourable Kadhi misdirected himself by failing to consider that the Appellants herein are the only legal representatives of the estate of the deceased and as such have the legal right to administer the affairs of the estate of the deceased.

6. THATthe Honourable Kadhi erred in Law and in fact by finding that he had the jurisdiction to determine the Respondent's Petition whose main issue of succession of the estate of the deceased has already been dealt with by this Honourable Court in High Court Succession Cause No. 444 of 2011.

7. THATthe Honourable Kadhi erred in Law and in fact by finding that he had the jurisdiction to hear and determine the Respondent's Application dated 25th April, 2016 whose main issue for determination was whether to grant an injunction restraining the Appellants herein from dealing with a parcel of land known as KWALE / NG'OMBENI / 1104 which is the only asset of the estate of the deceased.

5. The Appellants prayed that the ruling/decision of the Hon. Kadhi be set aside, that the Respondent’s Application dated 29. 8.16 be dismissed and that their Preliminary Objection of 11. 5.16 be allowed and that they be awarded costs.

6. Parties filed their submissions which were highlighted before me with the Hon. Chief Kadhi sitting as assessor as required by Section 65(1)(c) of the Civil Procedure Act which provides:

“(1) Except where otherwise expressly provided by this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie to the High Court…

(c) from a decree or part of a decree of a Kadhi’s Court, and on such an appeal the Chief Kadhi or two other Kadhis shall sit as assessor or assessors.”

7. I have considered the appeal and the rival submissions. The issue for determination is whether the Hon. Principal Kadhi erred in dismissing the Preliminary Objection raised by the Appellants challenging his jurisdiction to entertain the Petition before him.

8. To begin with the Respondent submitted that Section 75 of the Civil Procedure Act, and Order 43 of the Civil Procedure Rules list the orders in respect of which an appeal shall lie as of right. An appeal against an order dismissing a preliminary objection is not one of them. As such the Appeal herein against the order dismissing the Preliminary Objection is incompetent having been filed without prior leave of the Court and the same ought to be struck out.

9. The matter filed in the Kadhi’s Court was a Succession Petition and thus the applicable law is the Law of Succession Act and not the Civil Procedure Act. Section 50 (2) of the Law of Succession Act provides:

“50. Appeals to High Court

(1)…

(2) An appeal shall lie to the High Court in respect of any order or decree made by a Kadhi’s Court in respect of the estate of a deceased Muslim and, with the prior leave thereof in respect of any point of Muslim law, to the Court of Appeal.”

10. From the foregoing provision, it is clear that an appeal in respect of any order or decree by a Kadhi’s Court shall lie to the High Court. Any order or decree includes an order dismissing a preliminary objection. It is only an appeal to the Court of Appeal on a point of law that requires prior leave. Accordingly my finding is that the Appeal is properly before this Court.

11. The Appellants fault the Hon. Principal Kadhi for dismissing the Preliminary Objection. The Appellants had challenged the jurisdiction of the Kadhi’s Court to deal with a matter concerning a sale agreement, the nullification of which the Respondents sought. The Respondent argued that the subject matter before the Court was a house without land belonging to the Deceased and the alleged transaction for the purchase of land upon which the house stands. They claimed that the property was sold without the consent or notice to the rightful heirs. The Court had to make a finding on the disputed facts as such it was not a proper case in which a preliminary objection could be raised.

12. The jurisdiction of any Court is derived from the Constitution or statute or both. This was well articulated by the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR as follows:

“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

13. The Kadhi’s Court derives its jurisdiction from Article 170(5) of the Constitution of Kenya 2010 which provides:

“The jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.”

Section 5 of the Kadhi’s Court Act replicates the above provision.

14. In the Petition, in addition to standard prayers in a succession petition before the Kadhi’s Court for a determination of the estate and heirs the deceased and their respective shares therein, the Respondents made the following 2 other prayers:

a) A declaration Order that Property that the purported Sale of the Deceased’s Estate/ House on Plot No. MOMBASA/BLOCK XVI/1366 (ORIG. NO. MSA /XVI/22/250) situated at Majengo area within Mombasa County was and is Null and Void.

b) A further Declaration Order that the House on Plot No. MOMBASA/BLOCK XVI/1366 (ORIG. NO. MSA /XVI/22/250) situated at Majengo area within Mombasa County was and still remains the Deceased’s Estate.

15. The Hon. Principal Kadhi while dismissing the Preliminary Objection stated in his Ruling thus:

“In this case the parties agree the property originally belonged to the estate of the deceased herein but the dispute is whether or not the heirs had consented on the transaction and distribution of proceeds. The transaction was done on 11th February 1999 when most primary heirs were alive. The title is already transferred to third parties… The question of whether or not the estate of Nyamwanzi was properly distributed among primary heirs is a question of inheritance of estate of a deceased Muslim. It falls within the meaning of Article 170(5) of the Constitution of Kenya, 2010 and Sec. 5 of the Kadhis court Act, Cap 11. ”

16. The jurisdiction of the Kadhi’s Court is limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance. This Court appreciates that the question as to whether or not the estate of the Deceased was properly distributed among primary heirs relates to the issue of inheritance. However, the Property is now registered in the name of a third party and the validity of the agreement pursuant to which the property changed hands is being challenged. The Respondents also sought a declaration that the said agreement be declared null and void. The question as to the validity of and prayer for nullification of the sale agreement is clearly outside the ambit of the Kadhi’s Court and any attempt to entertain the same would be tantamount to the Kadhi’s Court arrogating to itself jurisdiction exceeding that which is conferred upon it both by the Constitution and by statute.

17. Hon. Sheikh Al Muhdhar A. S. Hussein, Chief Kadhi was of the opinion that the appeal should be allowed and stated in part:

“Ground (1, 2) of appeal is correct, that the Hon. Kadhi treated the case before him as a Succession Case which it is not. I therefore support this one…

The learned Kadhi erred in his findings that the Kadhi Court has jurisdiction to entertain matters of sale and Purchase.”

18. With respect, I disagree with the Hon. Chief Kadhi that the matter before the Hon. Principal Kadhi was not a succession matter. Save for the question regarding the validity of the sale agreement and the prayer for nullification of the same, the matter was properly before the Kadhi’s Court as a succession matter. I do however concur with the Hon. Chief Kadhi that the Hon. Principal Kadhi erred in assuming jurisdiction over the question relating to the sale and purchase of the Property. In the circumstances, my conclusion is that the Appeal succeeds in part. The matter before the Hon. Principal Kadhi may therefore proceed to hearing save for the matters touching on the sale and purchase of the Property in respect of which the Hon. Principal Kadhi is devoid of jurisdiction. There shall be no order as to costs.

DATED, SIGNED and DELIVERED in MOMBASA this 4th day of May 2018

____________

M. THANDE

JUDGE

In the presence of: -

…………………………….for the Appellants

…………………………….for the Respondents

…………………………….Court Assistant